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Karnataka High Court · body

2010 DIGILAW 746 (KAR)

G. v. Satish Reddy VS Shiva Distilleries Limited

2010-06-22

ARAVIND KUMAR

body2010
Judgment :- Aravind Kumar, J. This writ petition is directed against the order passed by the 11th Additional City Civil Judge, Bangalore in O.S.No.904/2008 dated 18.01.2010 whereunder I.A.No.2 filed by the respondent herein to get themselves impleaded as defendant No.37 has been allowed. 2. The facts in nutshell leading to the filing of this writ petition are as under: The writ petitioners herein instituted a suit O.S.No.904/2008 on the file of the City Civil Judge, Bangalore seeking enforcernent of agreement of sale dated 31.05.2004 and subsequent agreement dated 14.08.2004 which is said to be registered and for other consequential reliefs. On service of notice defendants 1 to 18 have entered appearance and have filed written statement. Subsequently defendants 19 to 36 have got themselves impleaded on the basis of the application filed by them. When matter stood thereat an application namely I.A.No.2 came to be filed by the respondent herein under Order 1, Rule 10(2) of Code of Civil Procedure to get itself impleaded as defendant on the ground that it is a proper and necessary party to the suit since it had obtained an agreement of sale dated 18.04.1994 and 26.09.1995 from defendants 1 to 18 and in part performance of these two agreements they have been put in possession of the property which has been described as suit schedule property in the suit in question and hence it was contended that they have right to contest the suit and defend their possession. The said application came to be resisted by the plaintiffs contending that they are not necessary and proper parties and the scope of the suit being limited there would not be any occasion to consider their claim in this suit and as such plaintiffs sought for dismissal of the application. 3. On considering the rival contentions Trial Court by its order dated 18.01.2010 allowed the application and permitted the applicant to come on record as defendant No.37. It is this order which is impugned in the present writ petition. 4. I have heard Sri.D.R.Sundaresh, learned Counsel appearing for the petitioners and Sri.Bhanu Prasad, learned Counsel appearing for the respondent. 5. 3. On considering the rival contentions Trial Court by its order dated 18.01.2010 allowed the application and permitted the applicant to come on record as defendant No.37. It is this order which is impugned in the present writ petition. 4. I have heard Sri.D.R.Sundaresh, learned Counsel appearing for the petitioners and Sri.Bhanu Prasad, learned Counsel appearing for the respondent. 5. Sri.D.R. Sundaresh, learned Counsel for petitioners would submit that order of Trial Court is erroneous for the following reasons: a) The agreement of sale on which the suit of petitioner was based namely O.S.No.904/2008 was a registered agreement and same prevails over an unregistered agreement which is now claimed by impleading applicant. b) In a suit for specific performance a rival claimant cannot enforce his right in their suit and a separate suit has to be filed by it. c) The plaintiff being a dominus litus he has a right to choose his parties to the suit. d) In order to overcome the law of limitation applicant cannot be allowed to come on record, particularly when he has not exercised his right under the alleged agreement of sale which he possesses. 6. In support of his submission he relies upon the following judgments: 1) AIR 2005 SC 2813 , Kasturi Vs. Iyyamperumal and Others 2) 1968 Mysore LJ Page 243, Gundu Baballi Banajwade Vs. Raghavendra Harikale and Others, and seeks for allowing of the writ petition and quashing of the order passed by Trial Court by Issue of writ of certiorari. 7. Per contra Sri Bhanu Prasad, learned Counsel for the applicant/respondent while defending the order passed by the Trial Court would submit that by virtue of agreement of sale dated 18.04.1994 and also the subsequent agreement dated 26.09.1995 applicant has been put in possession of the property as is evident from Clause 30 of the said agreement and as such to protect his possession he is entitled to come on record as a necessary and proper party to defend his possession which property is the subject-matter of the present lis. He would also submit that still applicant has time to enforce his right under the agreement inasmuch as there was litigation pending in respect of this property between the owners of the property on one hand and the Statutory authorities on the other hand and the same is yet to be resolved and till it is resolved he has got a right to sue and his cause of action to sue his vendors for enforcement of agreement of sale survive till such day dispute is resolved. 8. Elaborating his submission he would contend that defendants 19 to 36 who have come on record by virtue of their application claim to possess a semblance of right over suit schedule property and when they have been allowed to come on record if the present applicant who admittedly possesses an agreement of sale in his favour and is in possession and enjoyment of the property in question is allowed to come on record no prejudice would be caused to either plaintiffs or any other contesting defendants. He would submit that in order to avoid multiplicity of litigation it would be in the interest of both parties that order of Trial Court permitting applicant to come on record is to be sustained and writ petition is required to be dismissed. 9. In view of these rival contentions, following points arise for consideration by this Court: 1) Whether the order passed by Trial Court in allowing I.A.No.2 and permitting the applicant to come on record is to be confirmed, reversed or modified? 2) What Order? REASONS: 10. Order 1, Rule 10, Code of Civil Procedure gives a wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit and whether the impleadment of the said party is necessary and vital for the decision of the suit will have to be examined 11. Order 1, Rule 10(2) covers two types of case (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the suit cannot be completely and effectively decided. The former is called necessary party and the latter is called proper party. Order 1, Rule 10(2) covers two types of case (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the suit cannot be completely and effectively decided. The former is called necessary party and the latter is called proper party. Sub-rule (2) of Order 1 Rule 10 of Civil Procedure Code, therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and it is possible to be looked into while deciding the applications under Order 1, Rule 10(2) of Code of Civil Procedure so as to avoid multiplicity of litigations and also conflicting decisions being passed in different suits which will be safeguarded if such applications are allowed, if the applicant sought to come on record is necessary and proper party. 12. Keeping these principles in mind when the facts of the case on hand is examined, it is noticed that proposed applicant intends to come on record by virtue of an agreement to sell executed by his vendors namely defendants 1 to 18 under agreement of sale dated 18.04.1994. In the said agreement as per Clause 30 possession is said to have been delivered and said clause reads as under: “That the First Party has this day delivered actual and factual physical possession of the schedule property along with all structures to the Second Party on the date of execution of this agreement in part performance of this contract. The Second Party is at liberty to utilise the same in manner they like except construction of buildings till the date of execution of the sale-deed.” 13. The Second Party is at liberty to utilise the same in manner they like except construction of buildings till the date of execution of the sale-deed.” 13. The applicant herein claims to be in possession of the property by virtue of above referred agreement. As rightly contended by Sri.Bhanu Prasad there is no dispute that agreement of sale dated 18.04.1994 has not been enforced by the applicant till date. The reasons assigned is not the arena with which this Court is required to consider the said contentions. Hence, the reasons assigned as to why said agreement to sell dated 18.4.1994 is not enforced is not enforced is not considered by this Court in this writ petition. The ground on which the proposed applicant intends to come on record is only by virtue of Clause 30 referred to supra in the agreement to sell dated 18.04.1994. It is the contention of learned Counsel for the proposed applicant that ultimately if a decree is passed in the suit in question namely O.S.No.904/2008, the plaintiffs while executing the decree and in collusion with defendants 1 to 36 are likely to disturb his possession and his right would get affected namely the right of the proposed applicant and as such he would be necessary and proper party. In this regard it would be necessary to extract the decision of the Hon’ble Supreme Court in the case of Kasturi Vs. Iyyamperumal and Others reported in AIR 2005 SC 2813 where an identical question came up for consideration. The question that arose for consideration in Kasturi’s case reads as under: “The only question that needs to be decided in this case is whether in a suit for specific performance of against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party/defendant in the said suit.” (Emphasis supplied by me) 14. Even in the said case an application for impleading was moved by a party setting up a claim of independent title and possession over the contracted property, which application came to be allowed by the Trial Court and confirmed by the High Court. Even in the said case an application for impleading was moved by a party setting up a claim of independent title and possession over the contracted property, which application came to be allowed by the Trial Court and confirmed by the High Court. The said findings of the High Court as well as Trial Court came to be reversed by the Hon’ble Supreme Court and while examining the scope of Order 1 Rule 10 it has been held by Hon’ble Supreme Court as follows: “Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against the respondent Nos.2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously cannot bind the respondent Nos.1 and 4 to 11. It may also be observed that in the event the appellant obtains a decree for specific performance of the contracted property against the respondent Nos.2 and 3, then the Court shall direct execution of deed of sale in favour of the appellant in the event respondent Nos.2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted herein earlier, since the respondent Nos.1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property a decree passed in such a suit shall not bind them and in that case the respondent Nos.1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of the CPC, if they are available to them or to file an independent suit for declaration of title.” (Emphasis supplied by me) The principles enunciated therein would be squarely applicable to the facts of the present case. 15. In the instant case writ petitioners have instituted a suit in respect of enforcement of a registered agreement to sale dated 31.05.2004 and the supplementary agreement dated 14.08.2004 against defendants 1 to 36. 15. In the instant case writ petitioners have instituted a suit in respect of enforcement of a registered agreement to sale dated 31.05.2004 and the supplementary agreement dated 14.08.2004 against defendants 1 to 36. The issue that may arise for consideration and adjudication in this suit is limited to the extent of considering the right of the parties arising out of the contracts in question. If the proposed applicants were to come on record the contours of the case would get deviated inasmuch as it is specific contention of the proposed applicant that he is in possession of the property and the necessary pleading that would be raised about the possession of the applicant which when raised is required to be delved upon by raising an issue and that would be impermissible in a suit for specific performance as also by Hon’ble Supreme Court in Kasturi’s case referred to supra wherein it is held to the following effect: “It is well-settled that in a suit for specific performance of a contract for sale the us between the appellant and the respondent Nos.2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos.1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germance for decision in the suit for specific performance of the contract for sale that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos.2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos.1 and 4 to 11 relating to the contracted property.” (Emphasis supplied by me) 16. Even in the instant case proposed respondent/defendant claims to be an agreement holder in possession and as observed in Kasturi’s case by their Lordship’s it would be open for the person in possession to assert his possession either by way of independent suit or by filing an application as an obstructor and he cannot attempt to creep into the suit for which he cannot have a right and rights if any of the proposed applicant cannot be adjudicated in such a suit. 17. 17. The two tests as prescribed in Kasturi’s case when applied to the facts of the present case it is seen that in both the tests the applicant is unable to succeed since the Civil Court which is trying the suit i.e., O.S.No.904/2008 would be able to pass a decree effectively even in the absence of the proposed applicant inasmuch as the issues which requires to be framed and adjudicated are limited as noted hereinabove. 18. In view of the above the question No.1 formulated herein is to be answered in favour of the petitioners by holding that order passed by Trial Court cannot be sustained and requires to be quashed and accordingly order dated 18.01.2010 passed in O.S.No.904/2008 by the 11th Additional City Civil Judge, Bangalore is hereby quashed. I.A.No.2 filed by the respondent is hereby dismissed. Writ petition is allowed. No order as to costs.